ONCJ 2019

The applicant sought to withdraw her guilty plea to possession of cocaine for the purpose of trafficking, which she had entered on April 26, 2019.

The Crown opposed the application.

The court granted the application, finding that permitting withdrawal was necessary to prevent a miscarriage of justice.

Key factors included the applicant's self-identification as Indigenous, her religious faith, her belief in her innocence, the extraordinary pressure she faced due to custody and family court proceedings regarding her children, and her concerns about mental health during the plea process.

The accused was charged with 24 offences including possession for the purpose of trafficking of prohibited substances (heroin, cocaine, crack cocaine, and crystal methamphetamine), firearms offences relating to possession and careless storage of a handgun and ammunition, and possession of proceeds of crime.

The preliminary inquiry judge assessed whether the Crown had adduced sufficient evidence to establish the essential elements of possession—knowledge and control—through circumstantial evidence.

The judge found that the Crown's proposed inferences were speculative and did not logically flow from the established facts.

The accused was discharged on all counts.

The respondent father brought two contempt motions against the applicant mother for alleged breaches of a 2013 custody and access order.

The court found the mother in contempt for the period between October 2017 to April 18, 2018 and on September 21, October 5 and 19, 2018, but rejected allegations regarding earlier periods.

The court determined that while the mother initially facilitated access, she deliberately interfered with the father's relationship with the children following an October 2017 incident by creating an atmosphere that supported the children's expressed reluctance to visit.

The court imposed a graduated access schedule with financial penalties for missed visits rather than ordering extended makeup access or imposing a fine.

The accused pleaded guilty to criminal negligence causing death in connection with a motor vehicle collision that killed Julia Baciu.

The accused, a novice G2 driver, was operating a vehicle at 168 km/h in a 50 km/h zone while impaired by alcohol and marijuana.

He struck a vehicle driven by the victim's boyfriend, causing catastrophic injuries.

The court imposed a sentence of 5 years 9 months imprisonment, an 8-year driving prohibition, and ordered a DNA sample.

The court emphasized denunciation and deterrence as the predominant sentencing principles, noting the epidemic of traffic fatalities in York Region.

Sentencing decision following conviction for aggravated assault and weapons dangerous.

The accused stabbed the victim once in the cardiac box during an altercation, causing catastrophic injuries including cardiac arrest, anoxic brain injury, and permanent cognitive and functional impairment.

The court imposed a penitentiary sentence of 3.5 years on the aggravated assault charge, with 12 months concurrent on the weapons charge, resulting in a net sentence of 1.5 years after crediting 2 years of pretrial custody.

The court applied collateral consequence credit of 3 months for harsh incarceration conditions, resulting in a final net sentence of 15 months, followed by 2 years probation with conditions including no contact with the victim, counselling, and a lifetime weapons prohibition.

Both defendants were convicted of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code.

Over three years, they published a community newspaper called Your Ward News that promoted hate against Jews and women, glorified Nazism, denied the Holocaust, and counselled violence against women.

The court imposed consecutive sentences: James Sears received one year incarceration (six months on each count, the procedural maximum for summary conviction); Leroy St. Germaine received a 12-month conditional sentence (six months on each count served consecutively, with house arrest conditions).

The court declined to impose probation on either defendant, finding such restrictions would unduly curtail Charter-protected freedom of expression.

The defendants were convicted of wilfully promoting hatred contrary to s. 319(2) of the Criminal Code.

Over a three-year period, the defendants published and edited a community newspaper that promoted hate against Jews and women, glorifying Nazism, denying the Holocaust, and demonizing both groups.

The sentencing decision addresses the appropriate custodial sentence, the application of consecutive versus concurrent sentencing, aggravating and mitigating factors, community impact, and the scope of probation conditions.

The court imposed a one-year jail sentence (six months on each count served consecutively) and declined to impose probation restrictions on publishing activities, finding such restrictions would violate Charter-protected freedom of expression.

The applicant brought a motion to re-open his trial after conviction, claiming ineffective assistance of counsel.

The applicant sought to introduce affidavit evidence regarding ineffective assistance and proposed witnesses.

The court applied the test from R. v. Arabia and R. v. Kowall, considering both the Palmer fresh evidence criteria and whether the application was an attempt to reverse tactical decisions made at trial.

The court found that the decision to call no defence evidence was a deliberate tactical choice made by trial counsel based on professional judgment.

The court dismissed the application, finding that the applicant failed to meet the test for re-opening and that trial counsel's conduct fell within the wide range of reasonable professional assistance.

The defendant brought an application four months after conviction and four days before sentencing to re-open the trial and/or declare a mistrial.

The application raised multiple grounds including ineffective counsel, abuse of process, apprehension of bias, constitutional challenges regarding freedom of expression and jury trial rights, and inadequate reasons for judgment.

The court applied the Palmer test for admissibility of fresh evidence after conviction and found most issues lacked merit.

However, regarding the failure to call a defence, the court determined it could not assess the application without hearing from the defendant and counsel, and without a proffer of the evidence sought to be adduced.

The court allowed the application to proceed by way of affidavit evidence to ensure no miscarriage of justice.

A 20-year-old offender pleaded guilty to kidnapping with a firearm, extortion with a firearm, aggravated assault, possession of a loaded restricted firearm, possession for the purpose of trafficking in crack cocaine and methamphetamine, and breach of probation.

The offender, along with two co-accused, kidnapped and assaulted a victim over four hours using a loaded handgun, threatening the victim and his family, and ultimately obtaining $200.

The offender was subsequently found in possession of significant quantities of Schedule I drugs.

The sentencing court imposed a global sentence of eight years less pre-trial custody credit, balancing the serious nature of firearm-related offences with the offender's youth, genuine remorse, guilty plea, and rehabilitation prospects.

A trial decision addressing custody, relocation, access, and child support in a family law matter involving twin children.

The mother sought sole custody and permission to relocate with the children from Canada to Australia to live with her new husband.

The father opposed the relocation and sought joint custody and extensive access.

The court granted the mother sole custody and permission to relocate to Australia, finding the move was in the children's best interests.

The court ordered a phased access schedule for the father, commencing with day visits and progressing to overnight visits, with international travel to the United Kingdom permitted from age nine.

The court imputed income to the father for child support purposes based on his salary and family gifts, ordering monthly child support of $1,624.

The applicant sought to transfer her criminal trial from the Ontario Court of Justice at Orangeville to the Davis Courthouse in Brampton pursuant to Section 599 of the Criminal Code.

The applicant was charged with five criminal offences including impaired operation and breach of probation arising from an incident in the Town of Caledon.

The court dismissed the motion, upholding a longstanding regional policy established in 1997 that transfers Caledon criminal trials to Orangeville.

The court found that the policy was expedient to the ends of justice and that the applicant's personal inconvenience did not warrant departure from the established practice.

The applicant was charged with impaired driving and refusing to provide a breath sample.

She applied for a stay of proceedings based on a breach of her right to be tried within a reasonable time under section 11(b) of the Canadian Charter of Rights and Freedoms.

The main issue was whether a five-month period during which the Crown failed to provide video disclosure in a playable form constituted defence delay.

The court found that the three-week adjournment after receiving the playable video constituted defence delay, and that the applicant failed to demonstrate meaningful and sustained steps to expedite the proceedings by not seeking a judicial pre-trial earlier.

The net delay fell below the 18-month presumptive ceiling, and the applicant failed to establish that the delay was unreasonable.

The application for a stay was dismissed.

The defendant was charged with driving with excess blood alcohol (over 80 mg per 100 mL of blood).

Officers conducted a RIDE spot check and the defendant failed a roadside screening test.

Two breath samples were provided at the station, registering 160 mg and 150 mg respectively.

The defence raised two Charter-based arguments and two substantive challenges: (1) that the presumption of identity in s. 258 of the Criminal Code does not survive its repeal (the Shaikh issue), and (2) that the Crown failed to establish the accuracy of the Intoxilyzer tests (the Flores-Vigil issue).

The court rejected both defence arguments, finding that the presumption of identity applies to pre-amendment offences and that the Crown established the preconditions for the presumption of accuracy through viva voce evidence.

The defendant was found guilty.

The defendant was charged with care or control of a motor vehicle while impaired by alcohol contrary to section 253(1)(a) of the Criminal Code, care or control of a motor vehicle over 80 contrary to section 253(1)(b), and driving while disqualified contrary to section 259(4)(a).

The defence conceded impairment and blood alcohol concentration over the legal limit.

The sole issue was whether the Crown proved the defendant was in care or control of the motor vehicle on May 22, 2017.

The defendant testified he placed food in the rear door of his vehicle and was standing in front of the car when arrested.

The Crown relied on police officer testimony that the defendant was observed sitting in the driver's seat.

The court found the defendant's testimony regarding a designated driver arrangement implausible and accepted the officer's evidence despite deficient note-taking.

The defendant was convicted on both the impaired care or control and driving while disqualified counts.

The respondent mother brought an urgent motion seeking temporary sole custody of the parties' young son and a restricted access schedule for the applicant father.

The father sought to restore the pre-motion shared parenting arrangement on a 2-2-3 basis.

The court found that the mother was the primary caregiver prior to separation and that the father's conduct, including leaving the child unattended in a car and on a doorstep, demonstrated serious lapses in judgment.

The court granted the mother temporary sole custody with final decision-making authority on major issues, while providing the father with significant parenting time.

The court also imposed a condition that the father not leave the child alone while in his care.

The accused applied for leave to cross-examine the affiant of an Information To Obtain (ITO) a search warrant at a preliminary inquiry.

The accused sought to examine areas relating to the corroboration of confidential informant (CI) information, the steps taken to corroborate such information, and whether police contaminated the information by reaching out to a CI.

The court dismissed the application, finding that the proposed cross-examination did not meet the threshold test established in R. v. Garofoli and R. v. Dawson.

The court held that a preliminary inquiry is not the appropriate venue for such cross-examination, particularly given the risk of identifying confidential informers and the fact that the trial judge would be better positioned to address these issues through the Garofoli procedure.

This is a costs endorsement following a two-day trial on a motion to change parenting orders for three-year-old twin girls.

The father sought custody and relocation of the children from Niagara Falls to Toronto.

The court dismissed the custody and relocation requests but granted the father extensive access on a graduated basis.

The court found divided success overall, with the father being the more successful party on the dominant issue of parenting time.

The mother's unreasonable behaviour in restricting access and failing to facilitate the father-child relationship warranted costs consequences.

The court awarded costs to the father in the amount of $6,000, inclusive of fees, disbursements and HST, taking into account the mother's limited financial means.

The defendant was charged with impaired driving, driving with excess blood alcohol concentration, and dangerous driving following a traffic stop.

The Crown withdrew the first two charges, leaving only the dangerous driving charge for trial.

The court found that the defendant's driving over approximately 25 kilometres, characterized by sustained lane violations, erratic speeds, failure to maintain control, and resistance to police intervention, constituted dangerous driving under the Criminal Code.

The defendant was found guilty beyond a reasonable doubt of dangerous driving.

The defendant was charged with driving while disqualified contrary to section 259(4) of the Criminal Code and breach of recognizance contrary to section 145(3) of the Code following a traffic stop.

The defendant challenged the stop as an arbitrary detention in violation of sections 9 and 10 of the Canadian Charter of Rights and Freedoms.

The court found that the police lawfully stopped the vehicle based on a citizen complaint regarding solicitation at a liquor store, and that the defendant was not detained in the constitutional sense prior to arrest.

The court found no Charter breaches and convicted the defendant on both counts.